On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Gaulkin, Havey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
The Statewide Mandatory Source Separation and Recycling Act, L. 1987, c. 102; N.J.S.A. 13:1E-99.11 to -99.32 (the Recycling Act), required every county to adopt a "district recycling plan" within six months of its enactment. N.J.S.A. 13:1E-99.13a. However, any county which received approval of the Department of Environmental Protection (DEP) of a "district recycling plan" as part of its district solid waste management plan under the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -198, prior to January 1, 1987 was exempted from this requirement, if the county had "established and implemented a county-wide mandatory source separation and recycling program for at least three recyclable materials, in addition to leaves, and shall have demonstrated that it has secured markets for these materials." N.J.S.A. 13:1E-99.15.
The threshold issue presented by this appeal is whether the Law Division has jurisdiction to determine a county's eligibility for the exemption provided by N.J.S.A. 13:1E-99.15. We hold that the DEP has exclusive jurisdiction to decide whether a county is entitled to this exemption. Therefore, we reverse the judgment of the Law Division enjoining Burlington County from pursuing its approved recycling program and transfer the matter to the DEP.
This case has a protracted procedural history which it is appropriate to summarize briefly before turning to the jurisdictional issue on which our decision turns. Two suits were filed in the Law Division challenging Burlington County's district recycling plan, which was a part of the August 13, 1986
amendment to the Burlington County solid waste management plan approved by DEP on December 5, 1986. The first complaint was filed on June 11, 1987 by Kohlbrenner Recycling Enterprises, Inc (Kohlbrenner), the operator of an existing recycling facility in Burlington County, which alleged that the County was required to adopt a new recycling plan in conformity with the Recycling Act and that Kohlbrenner, as an existing facility, was entitled to "priority consideration" in that plan. The suit also sought to enjoin the County from constructing a new recycling facility in Delran Township (Delran). The County's answer asserted that it was exempt under N.J.S.A. 13:1E-99.15 from the requirement that it adopt a new "district recycling plan." Viewing Kohlbrenner's complaint as a challenge to the County's solid waste management plan approved by DEP on December 5, 1986, the Law Division concluded in a reported opinion that exclusive jurisdiction rested in the Appellate Division but declined to transfer the matter because the complaint had been filed beyond the time limits provided by R. 2:4-1(b), R. 4:69-6 and N.J.S.A. 13:1E-23(f). Kohlbrenner Recycling Enterprises, Inc. v. Burlington County, 228 N.J. Super. 624, 628-29, 550 A.2d 771 (Law Div.1987). Accordingly, the court dismissed the complaint. However, it stated in dictum that "[t]he County, on the basis of present proofs, has not satisfied the marketing criteria which are a condition to the allowance of the claimed exemption." Id. at 634, 550 A.2d 771. The court also stated that the County would be "entitled . . . to a plenary hearing on the marketing issue if further proceedings . . . become necessary." Ibid.
The second complaint challenging Burlington County's recycling plan was filed by Delran. This complaint also alleged that the County was required to adopt an amended solid waste management plan containing a recycling plan adopted in conformity with the Recycling Act. The County again filed an answer claiming that it was entitled to an exemption under N.J.S.A. 13:1E-99.15. The Occupational Training Center of Burlington County, Inc. (OTC), with which the County had
contracted to collect and market recycled material, intervened as a defendant and joined in this defense.
In a letter opinion dated September 15, 1987, the trial court concluded that it had jurisdiction to determine whether the County was exempt under N.J.S.A. 13:1E-99.15. The court expanded upon this conclusion in a letter opinion dated January 8, 1988, which stated:
[T]he consolidated suits claim that Burlington County is not exempt under the Recycling Act because it does not meet the statutory "market" requirement. The further claim is therefore made that the County has failed to adopt a plan as required by the Act and must do so before it can proceed with implementation. These claims, if successful, will have the indirect consequence of invalidating the plan adopted by the County and approved by the DEP in December 1986. That indirect consequence does not deprive this court of jurisdiction. The issues raised require interpretations of the statute and factual conclusions as to whether its conditions have been met. These functions are ones which courts are well suited to handle and ones which they do address with regularity.
The DEP, of course, has concurrent authority to interpret the statute in connection with its approval procedures and other activities entrusted to it by the Legislature. That circumstance does not oust the court from jurisdiction. In the present case, nothing is pending before the DEP and the plaintiffs here have no appropriate way to raise their contentions before the DEP. They are entitled to be heard here. The jurisdiction of ...